Obama, FDR and the Second Bill of Rights

Jan. 29 (Bloomberg) -- As the actions of his first term
made clear, and as his second inaugural address declared,
President Barack Obama is committed to a distinctive vision of
American government. It emphasizes the importance of free
enterprise, and firmly rejects “equality of result,” but it is
simultaneously committed to ensuring both fair opportunity and
decent security for all.

In these respects, Obama is updating Franklin Delano
Roosevelt’s Second Bill of Rights. To be sure, his second term
has barely started, and his precise place in history remains to
be established. Yet we can’t appreciate the arc of American
politics, or the nation’s current situation and prospects,
without understanding the Second Bill.

Roosevelt announced the Second Bill of Rights in his State
of the Union address in 1944. With the Great Depression over,
and the war almost won, FDR declared that we “have come to a
clear realization of the fact that true individual freedom
cannot exist without economic security and independence.”
Drawing on Thomas Jefferson, Roosevelt insisted that “these
economic truths have become accepted as self-evident. We have
accepted, so to speak, a second Bill of Rights under which a new
basis of security and prosperity can be established for all
regardless of station, race or creed.”

The Rights

Then he listed them:

The right to a useful and remunerative job in the
industries or shops or farms or mines of the nation.

The right to earn enough to provide adequate food and
clothing and recreation.

The right of every farmer to raise and sell his products at
a return which will give him and his family a decent living.

The right of every businessman, large and small, to trade
in an atmosphere of freedom from unfair competition and
domination by monopolies at home or abroad.

The right of every family to a decent home.

The right to adequate medical care and the opportunity to
achieve and enjoy good health.

The right to adequate protection from the economic fears of
old age, sickness, accident and unemployment.

The right to a good education.

“All of these rights,” Roosevelt said, “spell
security.” He added, “I ask the Congress to explore the means
for implementing this economic bill of rights -- for it is
definitely the responsibility of the Congress so to do.”

It is important to be clear about what FDR meant. He did
not propose to amend the Constitution. He did not think that the
Supreme Court should enforce the Second Bill of Rights. He
believed in free markets and free enterprise; he had no interest
in socialism. The nation’s wheelchair-bound president hardly
thought that the national government could eliminate sickness,
accident, unemployment or homelessness. He did not mean that
every American was necessarily entitled to a job; he did mean
that the national government would commit itself to promoting
economic conditions that would reduce unemployment. This was a
political speech, not a lawyer’s document.

Roosevelt’s purpose was to give a fresh account of the
nation’s defining aspirations. With the idea of security at its
foundation, and with an insistence on fair opportunity, the
Second Bill was meant to specify the goals of postwar America,
hardened by its emergence from an economic crisis and its
imminent victory in World War II. With the Second Bill of
Rights, the leader of the Greatest Generation sought to cement
his legacy. And while Roosevelt said that it was Congress’s
responsibility to carry out the Second Bill, of course it did
not do so, though various presidents and Congresses have taken
significant steps (including Medicare and Medicaid) in this
direction.

More Steps

In his first term, Obama took more such steps. The most
visible, of course, is the Affordable Care Act, which goes a
long way toward safeguarding “the right to adequate medical
care and the opportunity to achieve and enjoy good health.”

Expansion of the earned income tax credit, designed to
assist the working poor, is helping to give people “enough to
provide adequate food and clothing and recreation.” Efforts to
extend unemployment insurance have softened the impact of the
recession. The Race to the Top program, alongside numerous other
reforms, is improving education for millions of Americans.

Obama’s second inaugural did not refer explicitly to the
Second Bill of Rights, but it had an unmistakably Rooseveltian
flavor. Just after a serious economic crisis, Obama emphasized
“that a great nation must care for the vulnerable, and protect
its people from life’s worst hazards and misfortune.” Recalling
Roosevelt’s central theme, Obama said that “every citizen
deserves a basic measure of security and dignity.”

He added that in the U.S., we “recognize that no matter
how responsibly we live our lives, any one of us, at any time,
may face a job loss, or a sudden illness, or a home swept away
in a terrible storm.” Recognition of human vulnerability helps
to justify the “commitments we make to each other -- through
Medicare and Medicaid and Social Security.”

Almost 70 years ago, the occupant of the Oval Office
safeguarded the nation’s basic institutions, including the
system of free enterprise, while also insisting on the defining
commitments to fair opportunity and security for all. Having
helped America to survive its greatest economic challenge since
the 1930s, the current occupant of that office is giving new
meaning to those commitments, and making them his own.

(Cass R. Sunstein, the Felix Frankfurter professor of law
at Harvard University, is a Bloomberg View columnist. He is the
former administrator of the White House Office of Information
and Regulatory Affairs, the co-author of “Nudge” and author of
“Simpler: The Future of Government,” forthcoming in 2013. The
opinions expressed are his own.)